“Skinny labeling” refers to the practice of follow-on drug manufacturers seeking approval for some but not all the indications for which the branded drug has been approved. In the small molecule drug world, it has been a successful strategy for generic drug makers to get around the brand’s follow-on “new use” patents that keep the brand from falling off the “patent cliff” long after the expiration of the original patents. This strategy is starting to be used in the biosimilar realm.
On Oct. 10, 2018, President Trump signed into law the Patient Right to Know Drug Prices Act, which, among other things, requires that certain biosimilar applicants and reference product sponsors involved in patent disputes file their settlement agreements with the FTC and the DOJ. This article summarizes the key provisions of the new law and discusses its limitations.
Of the 17 biosimilar products litigated under BPCIA to date, in most cases (about 70 percent), the applicants engaged in and completed the patent dance before the lawsuits (setting aside allegations of noncompliance with the disclosure requirements). So far, in three instances, the biosimilar applicants have declined to dance outright.
In the Amgen v. Hospira decision, issued on Aug. 10, 2017, the U.S. Court of Appeals for the Federal Circuit gave a little more ammunition back to the biologics manufacturers (though on its face, it was a loss for Amgen), opining that the “could reasonably be asserted” language in the statute allows a biologics sponsor to initially include in the list any patent that it believes in good faith “could” reasonably be asserted, even if the belief is mistaken.